Many Questions for Sotomayor on Abortion

During her 17 years on the federal bench, Supreme Court nominee Sonia Sotomayor has left no clear footprints revealing where she stands on the right to abortion.

Some Democratic senators, including Dianne Feinstein, D-Calif., sought answers this week on Sotomayor's commitment to privacy rights. Meanwhile, activists on both sides of the debate continue to press senators to grill the nominee on her views of 1973's "Roe v. Wade", which made abortion legal nationwide, during upcoming confirmation hearings.

Since her nomination by President Obama last week, Sotomayor's scant record on abortion has brought to the fore assumptions about the White House vetting process and questions about how Sotomayor might ultimately vote on disputes over a woman's right to end a pregnancy.

Feinstein, a member of the Senate Judiciary Committee, said after meeting with Sotomayor this week that she believes Sotomayor generally would respect precedent.

White House predictions on high-court nominees and abortion rights do not always hold up. One example is the man Sotomayor would succeed, David Souter, who was appointed by the first President Bush and ended up vigorously embracing "Roe v. Wade". When a justice has bucked assumptions, that justice has consistently moved toward abortion rights rather than against them.

Feinstein presses issue

As a candidate, President Obama said he would make "preserving a woman's right to choose ... a priority." White House spokesman Robert Gibbs said Obama did not ask Sotomayor about abortion but was "very comfortable with her interpretation of the Constitution."

Sotomayor, a trial judge for six years and appellate judge for 11, has not ruled on a case involving "Roe v. Wade". She has decided a few cases at the fringes of the issue, yet those defy predictions.

On Wednesday, Feinstein explained why she will persist on the abortion rights question: "I remember what it was like when abortion was illegal, and the lives of young desperate women were in jeopardy." She said she worries that "Americans no longer appreciate what it would mean if (abortion rights) were taken away."

Nominees usually elude such questions during their hearings.

"I don't have concerns about this nominee in the sense that I think there is something on the record (against abortion rights)," says Nancy Northup, president of the Center for Reproductive Rights. "We just think it's important for Supreme Court nominees to say where they stand."

Charmaine Yoest, president of Americans United for Life, agrees. While observing that she and Northup both see nothing definitive in Sotomayor's record, Yoest says, "I think Nancy's probably sleeping a little better at night."

Tradition of scrutiny

Nominees' views of abortion traditionally spur debate.

When President Reagan talked to Sandra Day O'Connor before nominating her in 1981, he asked her about abortion. She said she considered the procedure "abhorrent." When opposition from anti-abortion activists in O'Connor's home state of Arizona emerged, the White House asked Kenneth Starr, then in the Justice Department and one of the lawyers who vetted O'Connor, to check on it.

Starr reported back that O'Connor as a state judge had not ruled on abortion and minimized her vote as a state senator to decriminalize abortion in Arizona.

In O'Connor's early years on the high court she voted to uphold abortion restrictions and criticized "Roe". Yet when the crucial test of it came in 1992, she voted to affirm.

When Souter was nominated in 1990, administration officials did not ask him about "Roe" but presumed he would vote against it. Instead, he has endorsed "Roe".

Sotomayor would be the sixth Catholic on the current high court. In 2007, when the five Catholic justices formed a narrow majority to uphold a federal ban on the abortion procedure critics call "partial birth," some commentators including University of Chicago law professor Geoffrey Stone questioned whether they were influenced by their faith. (The Roman Catholic Church opposes abortion.)

There has been no pattern of justices voting their religion, and as Stone noted Catholic Justice William Brennan voted for "Roe".

Said Northup of Sotomayor: "Her religious background doesn't give me pause. I am quite aware that people's religious views and their application of the law can be quite different."